Moore v. Rotenberry

• Decision Date: 10 June 1940
• Docket Number: 34202
• Citation: 188 Miss. 882,196 So. 758
• Court: Mississippi Supreme Court
• Parties: MOORE et al. v. ROTENBERRY

196 So. 758

188 Miss. 882

MOORE et al. v. ROTENBERRY

No. 34202

Supreme Court of Mississippi, Division B

June 10, 1940

APPEAL from the chancery court of Panola county, HON. L. A. SMITH SR., Chancellor.

Suit by Mrs. W. A. Moore and others against Mrs. Minnie B. Rotenberry to redeem interest in land which had been legally sold to state for delinquent taxes. From an adverse decree plaintiffs appeal. Affirmed.

Affirmed.

J. B Boyles, of Batesville, for appellants.

Statutes permitting the redemption of lands from tax sales are to be liberally construed in favor of persons in interest seeking to redeem.s

Darrington v. Rose, 90 So. 632, 128 Miss. 16; Bousquet v. Brown, 119 So. 166, 152 Miss. 171; McLain v. Meletio, 147 So. 878, 166 Miss. 1.

Courts of equity will not only protect the rights of minors but jealously guard their property rights against those persons who have no regard for their legal disabilities.

The question at issue in this case is the right of the minor appellants to redeem the land in question from a tax sale that was made during the life of their ancestor and father, W. A. Moore, who was the owner of the land and from whom appellants inherited said land by operation of law; and who died approximately seven months after said tax sale before the two years statute of limitations permitting redemption from said tax sale had run against the redemption of said land, or the sale as made by the sheriff and tax collector on the 7th day of April, 1930, for delinquent taxes due thereon for the year 1929.

All statutes permitting or authorizing the redemption of lands from tax sales, or pertaining to any causes of action for the recovery of land, have saving clauses in favor of minors and other persons under disabilities.

In view of this fact and the wording of the statutes, we submit that the minors in this case had a right to redeem their interest in this land, which they had inherited from their father after the tax sale and before the expiration of the time to redeem.

Sec. 3264, Code of 1930; Sec. 3264, 1933 Supplement of Code 1930, being Ch. 286, Laws of 1932; Begole v. Bigelow et al., 213 F. 401; Millet v. Mullen (Me.), 49 A. 871; McGauley v. Sullivan (Mass.), 54 N.E. 842, 174 Mass. 303; Jones v. Collins (Wis.), 65 A. L. R. 582; Begole v. Hazzard (Wis.), 51 N.W. 325; White v. Straus (W.Va.), 35 S.E. 843; Henze v. Mitchell (Neb.), 140 N.W. 149; 61 C. J., Sec. 1699; McNamara v. Baird (Miss.), 16 So. 384, 72 Miss. 89; Wilson v. Skyes (Miss.), 7 So. 492, 67 Miss. 617; Jones County Land Co. v. Fox, 83 So. 241, 120 Miss. 798; Bonds v. Greer, 56 Miss. 710; Moody v. Hoskins, 64 Miss. 468, 1 So. 622; Sec. 3257, Code 1930.

Gore & Strong and Eugene Thompson, all of Marks, for appellee.

While it is true that redemption statutes are to be construed liberally in favor of those seeking to redeem land from tax sales, yet it is equally well settled that parties seeking the right to redeem must clearly bring themselves within the provisions of such statutes.

4 Cooley on Taxation (4 Ed.), sec. 1563; McNamara v. Baird, 72 Miss. 89.

An infant seeking the right to redeem land from a tax sale within two years after attaining majority, must show that he was the owner of, or had some interest in, the land sold at the time it was sold for taxes.

4 Cooley on Taxation (4 Ed.), sec. 1563; 61 C. J. 1252-3, Sec. 1705; McNamara v. Baird, 72 Miss. 89; Bradbury v. Johnson (Ark.), Ann. Cas. 1914C, 419; Kulp v. Kulp (Kan.), 32 P. 1118, 21 L. R. A. 550; Harding v. Vaughn, 36 F. 472; Corry v. Shea (Wis.), 128 N.W. 892, Ann. Cas. 1912A, 1154.

A statute of limitation, beginning to run against a right, or cause of action, in an adult during his lifetime, will continue to run against his heirs or legal representatives after the adult's death.

37 C. J. 1026-7, Sec. 434; Tippin v. Coleman, 61 Miss. 516.

Redemption statutes are, in a sense, statutes of limitation, in that the right to redeem land from a tax sale is limited in point of time within which it must be exercised.

McNamara v. Baird, 72 Miss. 89.

Courts of equity will protect the property rights of minors, and jealously guard their rights and interest, as argued by counsel for appellants; but it is almost an equitable maxim that "minority is a shield and not a sword, " and has been so held, and so expressed, by this court.

Hayes et al. v. National Surety Co., 169 Miss. 676.

If it is true, as argued by counsel for appellants, that Chapter 286, Laws of 1932, enlarged the redemption rights of minors, appellants cannot avail themselves of this statute, because it was not in effect on the date of the sale of the land involved in this cause. The rights of all parties with reference to land sold for unpaid taxes, including the rights of appellee, claiming under and by virtue of a tax forfeited land patent from the State of Mississippi, are fixed and controlled by the laws and statutes in force at the date of the sale of such land for taxes, in this cause, on April 7, 1930.

4 Cooley on Taxation (4 Ed.), Sec. 1561; 1 Cooley's Constitutional Limitations (8 Ed. Carrington); Price v. Harley, 142 Miss. 584; Everett v. Williamson, 163 Miss. 848; Reid v. Federal Land Bank of N. O., 166 Miss. 392; Russell Inv. Corp. v. Russell, 182 Miss. 385.

OPINION

McGehee, J.

The appellants, who were minors at the time of the death of their father, W. A. Moore, on November 27, 1930, and who were joined in the suit in the court below by their mother and adult brothers and sisters, who did not appeal, are seeking by appropriate procedure, to redeem their undivided interests in certain land which was legally sold to the state on April 7, 1930, for the delinquent taxes due thereon for the year 1929. W. A. Moore was the owner in fee simple, and was in possession of the land at the time of the sale, and also at the time of his death, intestate, on the date above mentioned. This proceeding was not instituted until May 28, 1938, which was consequently long after the expiration of the two-year limitation within which W. A. Moore, as owner at the time of sale, would have been entitled to redeem the land, under section 3264 of the Code of 1930, the governing statute as to the rights acquired by the state, as well as those reserved unto the owner when the tax sale was made during the month of April of that year.

The statute above referred to contains a saving clause in favor of minors, as follows: "Saving to infants . . . whose land may be sold for taxes, the right to redeem the same within two years after attaining full age . . . from the state or any purchaser thereof . . ." At the time of the sale here in question the appellants owned no interest in the land involved. Therefore, the right given by the statute to infants whose land may be sold for taxes, for them to redeem the same within two years after attaining their majority applies only to land owned by an infant, or in which he has an interest, at the time of the sale. As to land belonging to their adult intestate, they inherit only such right as he had--that is to say, the right to redeem the land within two years from the date of sale. McNamara v. Baird, 72 Miss. 89, 16 So. 384. The statute of limitation had already commenced to run against W. A. Moore before his minor heirs inherited their interest in the land. In other words, it was not their land which was sold. The statutory provision which affords minors whose lands are sold for taxes the right to redeem after they reach their majority, "applies only to lands that belong to minors, and in which they have an interest at the time they are sold for...